Ebner v Official Trustee in Bankruptcy

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Conner & Conner has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. In these parenting proceedings the father filed an Application in a Proceeding on 6 August 2025. That Application in a Proceeding was amended on 18 November 2025. The most important order sought by the father in that interim application was a change of the residence of the child whereby the child moved from the mother's primary care to the father's primary care. The matter came on for hearing on 21 November 2025 and on that day the Court heard from the parties and the Independent Children's Lawyer. The Court did make orders whereby the child moved to live with the father. The Court made various other orders on that day.
2. In the Amended Application in a Proceeding (filed 18 November 2025) the father also sought, by order 9, the following "9. The mother must seek and obtain leave from the Court before she is to file and serve any further applications in a proceeding."
3. In the affidavit of the father relied upon at the interim hearing (filed 18 November 2025) he includes quite detailed evidence under a heading - "[Ms Conner's] conduct in these proceedings".
4. In particular I note paragraphs 68 and 69 where the father stated -

"68. [Ms Conner] has engaged in a course of conduct designed to, in my view, frustrate the progression of the Court proceedings and prevent the progression of X's time with me.

69. Since November 2024, [Ms Conner] has filed:

a. seven applications in a proceeding;

b. a contravention application;

c. two appeals against the Orders of his Honour Justice Howard; and

1. five notices of objection in relation to the subpoena to [B Family Services], [J Health Centre], Y office, Queensland Police, and [K] Contact Centre."

1. The number of applications filed by the mother has been excessive. The Court, on 21 November 2025, gave to the mother and the Independent Children's Lawyer leave to provide a written submission to the Court concerning the father's application as outlined in paragraph 9 of his Amended Application in a Proceeding. That application is, in effect, an application for a Vexatious Proceedings Order under s 102QB of the Family Law Act 1975 (Cth).
2. Neither the mother nor the Independent Children's Lawyer filed any submissions in relation to the father's application for a Vexatious Proceedings Order.
3. In turning my mind to the father's application for a Vexatious Proceedings Order I have read again the Ex Parte Reasons for Judgment which I delivered on 21 November 2025. Those Reasons for Judgment were settled and a copy was provided to the parties and the Independent Children's Lawyer soon after the Orders were made. Indeed there is currently pending an appeal to the Full Court in relation to the Orders made on 21 November 2025. That appeal is yet to be heard.
4. In the judgment itself I made reference to the fact that I was not taking into account contested conversations or contested evidence but was relying primarily on documentary evidence before the Court.
5. Whilst it is the case that I did not hear from the parties in the witness box and I did not make credit findings based on oral testimony - it is nonetheless the case that in paragraphs 30, 31, 32, 34, 44, 47, 51, 56, 58, 59, 60, 61, 64, 66, 67, 68, and 75 the Court has made findings which are highly critical of the mother.
6. I note that there is no application for recusal. The Court does not have to wait for an application for recusal. The Court can consider this issue of its own motion. The parties and the Independent Children's Lawyer were given a chance to make a submission about my possible recusal from the further hearing of the matter. No submissions were received within the time frame permitted by the Order dated 16 February 2026.
7. The "double might" test outlined in decisions of the High Court such as Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 492 [1] and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2] is satisfied because the Court has (through necessity) been highly critical of the mother and her conduct leading up to the interim decision on 21 November 2025. I have come to the conclusion that it is appropriate that I recuse myself from further hearing this matter.
8. An order will issue to reflect these Reasons. The application for a Vexatious Proceedings Order will need to be heard and determined by another Judge at some point in time in the future on a date to be fixed by the Court.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard.

[1] Per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at paragraph [11].